Impeachment of a President – 1868

Stephen Howard — Stone River Law

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Impeachment of a President – 1868

The term “impeachment” is commonly misunderstood as being synonymous with removal from office. As used in the Constitution, impeachment refers to a formal accusation of misconduct. Following the issuance of formal articles of impeachment by the House of Representatives, the Senate is responsible for holding a trial on the accusations of misconduct.

A few facts about the 1868 impeachment of President Andrew Johnson:

  • Johnson was the first U.S. President to be impeached.
  • The triggering events leading to impeachment centered on Johnson’s conduct in dismissing Edwin Stanton as Secretary of War.
  • On February 24, 1868, three days after Johnson had dismissed Stanton, the House of Representatives voted to impeach Johnson.
  • One week later, the House issued formal Articles of Impeachment against Johnson.
  • On March 4, 1868, the Articles of Impeachment were presented to the Senate.
  • The Senate convened the following day as a court of impeachment to hold trial on the Articles of Impeachment.
  • Following the presentation of evidence and witnesses, various delays to allow the President’s counsel to prepare, to respond, and to obtain the attendance of witnesses, closing arguments concluded on May 6, 1868.
  • The Senate’s final vote on May 26, 1868 fell one vote short of the two-thirds majority required to convict.
  • The entire process of impeachment and trial, beginning with the House’s initial resolution to impeach and ending with the final vote after trial in the Senate, lasted three months and two days.

Impeachment is an Inherently Political Process

By using the term “political process” we mean that the process of impeachment was intended by the drafters of the Constitution to be used as part of the system of checks and balances critical to maintaining balance in a representative democracy or republic. Under this system of checks and balances, impeachment provides a means whereby the legislative branch (House of Representatives and Senate) can remove of a president, vice-president, or other civil officer who has engaged in misconduct.

By giving the legislative branch the authority to impeach and remove the chief executive, the Constitution creates a means whereby the results of an election can be “undone” if it becomes apparent that the election placed a person unfit for office into a position of great power.

If the person elected as president engages in treason, bribery, or other high crimes and misdemeanors, we need not wait for a complete election cycle to pass before such a person can be removed from office. The potential danger to the country of leaving such a person in office until the next election was a danger deemed to be to great.

Impeachment and Trial

Following is a short outline of the processes of impeachment, trial, and removal from office as set forth in the Constitution.

Impeachment is a Formal Accusation of Misconduct

Article II, Section 4 of the United States Constitution provides that the President, Vice President, and “all civil officers of the United States” are subject to impeachment for “treason, bribery, or other high crimes and misdemeanors.” Impeachment is the formal accusation of misconduct raised against one of these government officials.

Article I, Section 2 of the Constitution gives the power of impeachment (accusation) exclusively to the House of Representatives. Only a simple majority vote in the House is required to approve articles of impeachment.

Grounds for Impeachment – “High” Crimes and Misdemeanors

The House may vote to approve articles of impeachment for “treason, bribery, or other high crimes and misdemeanors.” The concepts of treason and bribery are generally well understood. But the phrase “high crimes and misdemeanors” is a legal term of art in use during the 1700’s that as a phrase had meanings to those drafting the Constitution that are different from the meanings of those individual words as they are used in common language today.

The term “misdemeanor” today generally refers to a class of crimes that are less serious than a felony. Under federal law and most state laws, a misdemeanor crime is punishable by less than a year in jail. But in the 1700’s, the term “misdemeanor” was commonly used in a more generic sense to refer to improper behavior or general misconduct.

The term “high” is sometimes thought of today as referring to something serious or of great significance. But in the 1700’s, the term was used to refer to crimes or misdemeanors (i.e. misconduct) committed by a person of high office. An ordinary laborer might commit ordinary crimes or misdemeanors. But a person holding high office who engaged in misconduct in the course of performing the duties of that high office could be considered to have committed “high” crimes and misdemeanors.

Trial and Removal from Office

Impeachment itself does not involve a determination of guilt or innocence. Impeach does not necessarily lead to removal from office. Conviction and removal from office can occur only following trial in the Senate.

Article I, Section 3 gives the Senate “sole power” to try all impeachments. Once articles of impeachment are voted on and approved by the House, they are presented in the Senate for a trial. If the President of the United States is impeached, the trial in the Senate is presided over by the Chief Justice of the Supreme Court.

Article I, Section 3 requires a two-thirds majority vote by the Senate in order to convict in an impeachment trial. Article II, Section 4 makes removal from office mandatory following a conviction, stating that the President, Vice-President, or other civil officer who was the subject of that impeachment “shall be removed from office.”

Additional Consequences of Conviction

A “conviction” following an impeachment trial is not considered to be a criminal conviction. Nor does a conviction on impeachment prevent the filing of criminal charges following the removal from office.

Article I, Section 3 limits the penalties that may be imposed by the Senate following trial and conviction. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. . . .”

While the Constitution limits the penalties that can be imposed following a conviction in the Senate, it expressly allows further penalties to be imposed through the regular criminal justice system. Article I, Section 3 states clearly that “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”